Export Control List Review and Creating a Single Control List

“In short, the time for change is long overdue if the application of controls on key items and technologies is to have any meaning. We need a system that dispenses with the 95 percent of ‘easy’ cases and lets us concentrate our resources on the remaining 5 percent. By doing so, we will be better able to monitor and enforce controls on technology transfers with real security implications while helping to speed the provision of equipment to allies and partners who fight alongside us in coalition operations.” - Secretary Of Defense Robert M. Gates, April 20, 2010

Current System

The U.S. Government (USG) currently maintains two different primary control lists, the Commerce Control List (CCL) and the U.S. Munitions List (USML), administered by two different departments. These lists have fundamentally different structures, different levels of specificity, and different definitions. For instance, because the Department of Defense has transitioned to more Commercial-Off-the-Shelf procurement in the early 1990s, there is a growing overlap between the two control lists, which fuels growing confusion and inefficiency throughout the current U.S. export control system and affects exporters, the USG, and the U.S. industrial base.

Proposed System

In the ECR Initiative, new “criteria” for determining what items need to be controlled will be based on a three-tier construct, along with a coordinated set of policies for determining when an export license is required will be implemented. The tiered system will also include a “catch all” control for sanctioned end-users and destinations, proscribed entities, and proliferation, and counterterrorism end-uses. The control list criteria will be based on transparent rules, which will reduce the uncertainty faced by our allies, U.S. industry, and its foreign partners.

Most importantly, the reform process is intended to develop a new Single Control List that will allow the government to erect higher walls around the most sensitive items in order to enhance national security. In the interim, the USG is working to create a “bright line” between the U.S. Munitions List and Commerce Control List to clearly identify the jurisdiction of controlled items.

Process

Under ECR, a three phased review effort will be implemented:

Phase I. Develop methodology for rebuilding control lists. (Phase I completed in 2010)

On December 9, 2010, the U.S. Departments of State and Commerce issued proposed regulations to reform their control lists, the USML and CCL, respectively, in accordance with the ECR Initiative. Both Departments also solicited public comments on how to make their control lists more “positive” and how to tier the lists taking into consideration the military or intelligence significance of an item and foreign availability information. This is the result of core decisions made by the Administration on a methodology to determine what should be controlled, which is the foundation of the entire export controls system.

What does a “positive” control list mean? Describing items using objective criteria, such as qualities to be measured (e.g., accuracy, speed, and wavelength), units of measure (e.g., hertz, horsepower, and microns), or other precise descriptions, rather than broad, open-ended, subjective, catch-all, or design intent-based criteria.

See Licensing Policy for additional information regarding changes in licensing policies to both the USML and the CCL under ECR. Note: As stated in “Amendment to the International Traffic in Arms Regulations: Revision of USML Category VIII” 76 FR 68695 (Nov. 7, 2011) explains the Administration’s decision to first revise the USML into a positive list before initiating the tiering process for both the USML and the CCL.

Phase III.Merge USML and CCL into one list of controlled items, which will be administered by a single control agency. (Phase III requires completion of Phase II list review as well as Congressional Legislation)